State Supreme Court Addresses Prescriptions for Pets

AUGUST 01, 2007

Joseph L. Fink III, BSPharm, JD

Issue of the CaseThe Supreme Court of a midwest state answered a question of long standing under the law of that state: May a store that sells animal feeds and products also sell veterinary legend pharmaceuticals without holding a pharmacy permit from the state board of pharmacy?

Facts of the CaseFor about 20 years, the store had been selling veterinary legend pharmaceuticals for consumers to use with their pets pursuant to prescriptions from veterinarians. (The veterinary legend reads "Caution: Federal law restricts this drug to use by or on the order of a licensed veterinarian.") It was undisputed that the firm had no pharmacy permit, nor did it employ a pharmacist. During 1994 and again in 1997, the board of pharmacy investigated the operation but never took any action. In 2000, however, an inspector visited the site and reached an opposite conclusion - that the practice of pharmacy was occurring there without a pharmacy permit and without a pharmacist present. A cease-and-desist letter was issued by the board with 2 elements: (1) an order to stop selling the veterinary medications without a pharmacy permit; and (2) information stating that actions violating the Pharmacy Practice Act were a crime.

The firm advanced 2 legal arguments in the state Supreme Court. First, the lower court had erred when it concluded that retail sale of veterinary pharmaceuticals constitutes the "practice of pharmacy." Second, the Pharmacy Practice Act violates due process because it is constitutionally vague. The argument was that the statute "fails to inform persons of ordinary intelligence that the retail sale of veterinary prescription drugs to consumers for use in animals is the ?practice of pharmacy.'"

The Court's RulingAs a general principle, if a court can decide a case on a basis other than a constitutional argument, it will take that approach. Such is exactly what occurred here - the Supreme Court focused its opinion on interpretation of the Pharmacy Practice Act and its application to veterinary sales, finding an answer that was dispositive of the case, so the second constitutional law issue did not need to be addressed.

Reviewing the wording of the Pharmacy Practice Act, the court ruled that the legislation did not expressly empower the board to regulate the sale of drugs for animal use.

The Court's ReasoningThe court emphasized that "the goal of statutory analysis is to ascertain the intent of the legislature, as expressed in the words of the statute?.This goal is achieved by giving the language used its plain and ordinary meaning."

The justices focused on the fact that the statute created 11 classifications of pharmacy permits, none of which was for entities engaged in the sale of veterinary pharmaceuticals. They also looked at the wording of several provisions in the statute, finding support for the interpretations of both sides of the case. The board argued that the statute was to apply to all sales of federal legend drugs, with no exception for veterinary products. The firm argued that the statute did not expressly include coverage of veterinary products. The justices' conclusion was as follows:

This court declines to infer, or read into the statute, a legislative intent to regulate veterinary prescriptions, when it is not clear from the act.

Ordinarily, courts will give some degree of deference on matters of statutory interpretation to the administrative or regulatory agency that enforces the law, because, after all, that entity has more subject matter expertise than does a judge. Here the court was torn, however. Should it use the board's interpretations from 1994 and 1997 that the firm's activities were lawful, or should it use the agency's different interpretation from 2000 that a permit and the presence of a pharmacist were required?

The court continued:

The board does not have the power to broaden the scope of its statutory authority?.For many years, the board left the regulation of veterinary pharmacies out of the board's duties, and there was no legislative response.

There is no reason for this court to defer to the board's recent change in statutory interpretation.

The court emphasized that the decision to include or not include the sale of veterinary pharmaceuticals as part of the practice of pharmacy is a policy decision for the General Assembly. The board of pharmacy went to the Missouri legislature and received legislative authorization to issue veterinary permits to pharmacies, effective August 28, 2007.